REVISED OCTOBER 8, 2002
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-50591
DANIEL M PEREZ
Plaintiff - Appellant
v.
REGION 20 EDUCATION SERVICE CENTER
Defendant - Appellee
Appeal from the United States District Court for the Western District of Texas, San Antonio
September 20, 2002
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
KING, Chief Judge:
Plaintiff-Appellant Daniel M. Perez ("Perez") filed suit
against Defendant-Appellee Region 20 Education Service Center
("Region 20") for alleged violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 (2000), the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112
(2000), and the Texas Whistleblower Act, TEX. GOV’T CODE ANN.
§ 554.002 (Vernon 1994 & Supp. 2002). The district court granted
summary judgment in favor of Region 20 and Perez appeals. We
AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
On October 22, 1990, Perez began working for Region 20 as a No. 01-50591 -2-
Data Processing Specialist. Region 20 is one of several
Education Service Centers ("Centers") charged with administering
statewide educational programs and supporting local school
districts. In 1991, Perez was promoted to the position of Senior
Analyst Specialist II in the Regional Service Center Computer
Cooperative ("RSCCC") systems group.
Perez wished to become a Database Administrator for the
RSCCC group. Unlike other computer groups at Region 20, the
RSCCC group did not have a Database Administrator position.
Perez began taking on some database administration duties. These
duties were not part of Perez's job description, but employees at
Region 20 often took on duties outside of their job descriptions.
Perez submitted a request to Region 20 asking to be promoted to,
or reclassified as, a Database Administrator because it was a
higher-level position than Senior Analyst Specialist II. Perez's
request was not granted because there was no Database
Administrator position available in the RSCCC group, but Perez
was told that if the position was ever approved and funded for
his group, he would get the position.
In June 1998, Perez filed a complaint with the Equal
Employment Opportunity Commission ("EEOC"), claiming that Region
20 discriminated against him on the basis of national origin in
failing to promote or reclassify him.
In late 1997, Perez began experiencing stress and
depression; by January 1998, though, Perez received a clean bill
of health. In June 1998, Perez was treated for stomach problems
and work-related stress. Perez then told Region 20 that he was No. 01-50591 -3-
having medical problems and submitted certification of anxiety,
depressive disorder, dysthemia, and stress. Perez's therapist
noted that his condition was not chronic or incapacitating but
nonetheless recommended that Perez's work schedule be limited to
37.5 hours per week. Region 20 limited Perez's work schedule
until April 1999, when Perez's doctor released him to work
overtime under certain conditions.
Though Perez had previously received positive performance
reviews, Perez's annual performance review in August 1998
contained several negative comments. In March 1999, Perez
received a memo from a supervisor stating that his performance
was substandard and warning of possible consequences. In June
1999, Perez received two further memos documenting problems with
his work performance and hours. Perez was discharged on July 1,
1999.
Perez responded to his discharge by filing several
complaints against Region 20. Region 20 does not have a formal
procedure for an employee to appeal his termination, but it
allowed Perez to file a grievance. The grievance committee ruled
against Perez. Perez also filed a grievance with the
Commissioner of Education; that grievance was ultimately
dismissed due to lack of jurisdiction. In July 1999, Perez filed
a second EEOC complaint, alleging that: (1) Region 20 discharged
him due to his Hispanic national origin; (2) Region 20
discriminated against him because of his mental illness
disability in violation of the ADA; and (3) Region 20 discharged
him in retaliation for filing a previous EEOC complaint. The No. 01-50591 -4-
EEOC denied Perez's charges of discrimination and retaliation and
informed Perez of his right to sue Region 20.
Perez filed suit in Texas state court, alleging that Region
20 violated Title VII, the ADA, and Texas state law.
Specifically, Perez al
leged: (1) Region 20 discriminated against him on account of his
Hispanic national origin, in violation of Title VII, when it
failed to grant his request to reclassify his position or promote
him; (2) Region 20 discharged him in retaliation for filing his
charge of discrimination with the EEOC in violation of Title VII;
(3) Region 20 discharged him because of his Hispanic national
origin in violation of Title VII; (4) Region 20 discriminated
against him due to his mental illness disability in violation of
the ADA; and (5) Region 20 discharged him in retaliation for
reporting the sexual harassment of another Region 20 employee in
violation of the Texas Whistleblower Act. Region 20 removed the
lawsuit to federal district court.
The district court granted summary judgment for Region 20 on
all claims. Perez appealed.
II. STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo,
applying the same standards as the district court. Daniels v.
City of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied,
122 S. Ct. 347 (2001). Summary judgment should be granted if
there is no genuine issue of material fact for trial and the
moving party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(c). In determining if there is a genuine issue of No. 01-50591 -5-
material fact, the court reviews the evidence in the light most
favorable to the non-moving party. Daniels, 246 F.3d at 502.
A genuine issue of material fact exists when there is
evidence sufficient for a rational trier of fact to find for the
non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986). When the non-moving party
bears the burden of proof on a claim, the moving party may obtain
summary judgment without providing evidence that negates the non-
moving party's claim. See Celotex Corp. v. Catrett, 477 U.S.
317, 322-25 (1986). Rather, the moving party need only highlight
the absence of evidence in support of the non-moving party's
claim. See id.
III. DISCUSSION
Perez raises five issues on appeal. He argues that: (1)
Region 20 failed to promote or reclassify him on the basis of his
Hispanic national origin in violation of Title VII; (2) Region 20
discharged him in retaliation for making an EEOC complaint in
violation of Title VII; (3) Region 20 discharged him on account
of his Hispanic national origin in violation of Title VII; (4)
Region 20 discriminated against him due to his mental illness
disability in violation of the ADA; and (5) Region 20 discharged
him in retaliation for reporting sexual harassment in violation
of the Texas Whistleblower Act. We consider each claim in turn.
A. Title VII Failure to Promote Claim
Perez first contends that Region 20's failure to promote him
to the position of Database Administrator violates Title VII's
prohibition of discrimination in employment on the basis of No. 01-50591 -6-
national origin. See 42 U.S.C. § 2000e-2(a) (2000). To make out
a prima facie case of discrimination based on failure to promote,
Perez must show that: (1) he belongs to a protected class; (2) he
was qualified for the job he sought; (3) despite his
qualifications, Perez was rejected; and (4) after his rejection,
the position remained open and Region 20 continued to seek
applicants from persons of Perez's qualifications. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Bennett v.
Total Minatome Corp., 138 F.3d 1053, 1060 (5th Cir. 1998). If
Perez establishes a prima facie case, the burden shifts to Region
20 to articulate a legitimate, non-discriminatory reason for
Perez's rejection. See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000); McDonnell Douglas Corp., 411 U.S.
at 802. If Region 20 articulates a non-discriminatory reason,
Perez must then show that Region 20 did intentionally
discriminate, which he may do by demonstrating that Region 20's
proffered reason is simply a pretext for discrimination. See
Reeves, 530 U.S. at 143, 146-48.
The district court found that Perez had made out his prima
facie case, but that Region 20 had articulated a legitimate, non-
discriminatory reason for its failure to promote Perez. We
bypass the serious question whether Perez even met his prima
facie burden and address Region 20's articulated reasons for its
failure to promote or reclassify Perez.
Region 20 argues, and presented summary judgment evidence to
the effect that, it did not promote Perez or reclassify his
position because the position of Database Administrator within No. 01-50591 -7-
the RSCCC group was never approved for funding and, therefore,
the position did not exist. The district court found this to be
a legitimate, non-discriminatory reason for the failure to
promote Perez and found that Perez had failed to present
sufficient evidence to suggest that Region 20's stated reason was
false. Perez notes only that another software group at Region 20
did contain a Database Administrator position and that other
employees (two Anglo males, one Hispanic woman, one African-
American male, and one Asian-American woman) were reclassified.
Neither fact, nor the argument that underlies them, addresses the
inescapable fact that, as Perez admits in his brief, “[a]t the
time [he] began requesting the promotion/reclassification, his
funded software area (RSCCC group) did not have the position of
Database Administrator.” The nonexistence of an available
position is a legitimate reason not to promote. See Int’l Bhd.
of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977)
(finding that the “absence of a vacancy in the job sought” is a
legitimate reason for not hiring a person for a position). As
Perez produced no evidence to disprove this legitimate non-
discriminatory justification for Region 20's failure to promote
or reclassify him, the district court correctly granted summary
judgment on Perez’s Title VII failure to promote claim.
B. Title VII Discharge Claims
Perez next makes two Title VII claims related to his
discharge. First, he argues that he was discharged in
retaliation for filing his complaint of discrimination with the
EEOC. Second, he contends that he was discharged on account of No. 01-50591 -8-
his Hispanic national origin.
Title VII prohibits retaliation against employees who engage
in protected conduct, such as filing a complaint of
discrimination. See 42 U.S.C. § 2000e-3(a) (2000). To make out
a prima facie case of retaliation, Perez must show: (1) he
engaged in a protected activity; (2) he suffered an adverse
employment action; and (3) a causal nexus exists between the
protected activity and the adverse employment action. Gee v.
Principi, 289 F.3d 342, 345 (5th Cir. 2002). Once this prima
facie burden is met, retaliation claims utilize the same burden-
shifting approach as do failure to promote claims. Id.
Both parties agree that Perez satisfied the first two
elements of a prima facie case by providing evidence that Perez
filed a complaint with the EEOC (a protected activity) and that
he was terminated on July 1, 1999 (an adverse employment action).
Region 20 disputes that Perez provided sufficient evidence of the
third element, causation. The district court found that Perez
provided sufficient evidence of a causal connection. It
recognized that timing can constitute evidence of a causal
connection between a protected activity and termination and
looked to see whether Region 20 had articulated a legitimate,
non-discriminatory reason for the termination. The court then
found that the reason proffered by Region 20, poor work
performance, was adequate to shift the burden back to Perez to
disprove the proffered reason.
We again assume that Perez made out his prima facie case.
Perez's claim nonetheless fails because he has not provided No. 01-50591 -9-
evidence to refute Region 20's proffered explanation for his
discharge. Perez points to the failure by Region 20 to meet with
him to set performance goals as evidence of pretext. Such a
failure may be a management lapse, but it does not amount to
evidence of retaliation. See Mayberry v. Vought Aircraft Co., 55
F.3d 1086, 1091 (5th Cir. 1995) ("The question is not whether an
employer made an erroneous decision; it is whether the decision
was made with discriminatory motive."). Perez also suggests that
the fact that he received a low performance review within months
of his complaint shows pretext. The negative August 1998
performance review, however, is substantiated by other evidence
in the summary judgment record; Perez provides no evidence that
challenges the accuracy of his performance review. Merely
disagreeing with an employer's negative performance assessment is
insufficient to show pretext. See Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999). Perez has thus
failed to produce sufficient evidence of pretext. The district
court properly granted summary judgment on Perez’s retaliation
claim.
Perez also claims that Region 20 discharged him due to his
Hispanic national origin. Again, even assuming that Perez could
make out a prima facie case of discrimination, he simply provided
insufficient evidence that his termination was due to anything
other than his poor work performance. Poor work performance is a
legitimate, non-discriminatory reason for discharge. See, e.g.,
Shackelford, 190 F.3d at 408. The district court properly
granted summary judgment for Region 20 on this claim. No. 01-50591 -10-
C. Americans with Disabilities Act Claim
Perez next contends that he was discriminated against in
violation of the ADA. Before addressing the merits of this
claim, we must address the jurisdictional issue of whether
Perez's ADA claim is barred by sovereign immunity.1 We review
Eleventh Amendment immunity determinations de novo. See Cozzo v.
Tangipahoa Parish Council, 279 F.3d 273, 280 (5th Cir. 2002).
The Eleventh Amendment bars an individual from suing a state
in federal court unless the state consents to suit or Congress
has clearly and validly abrogated the state's sovereign immunity.
See U.S. CONST. amend. XI; see also, e.g., Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999)
(finding an individual may sue a state if the state consents to
suit or Congress validly abrogates sovereign immunity). The
state need not be the named party in a federal lawsuit, for a
state's Eleventh Amendment immunity extends to any state agency
or entity deemed an "alter ego" or "arm" of the state. See Vogt
v. Bd. of Comm'rs, 294 F.3d 684, 688-89 (5th Cir. 2002).
Region 20 and the amicus curie State of Texas argue that
Region 20 is an arm of the state that has not consented to suit
1 Sovereign immunity does not bar Perez's Title VII claims, as we have long recognized that Congress has clearly abrogated the states' Eleventh Amendment immunity in enacting Title VII. See, e.g., Ussery v. Louisiana ex rel. La. Dep't of Health & Hosps., 150 F.3d 431, 434-35 (5th Cir. 1998). No. 01-50591 -11-
and Perez's claim under Title I of the ADA is thus barred.2 As
the Supreme Court recently held in Board of Trustees v. Garrett,
Congress did not abrogate the states' sovereign immunity in
enacting Title I of the ADA. See 531 U.S. 356, 365-74 (2001).
Thus, the Eleventh Amendment bars Perez's ADA claim if Region 20
is considered an arm of the state.
The inquiry then becomes "whether the lawsuit is one which,
despite the presence of a state agency as the nominal defendant,
is effectively against the sovereign state." Earles v. State Bd.
of Certified Pub. Accountants, 139 F.3d 1033, 1037 (5th Cir.
1998). This circuit uses a six-factor test to guide this
inquiry. Cozzo, 279 F.3d at 281-83; Clark v. Tarrant County, 798
F.2d 736, 744-45 (5th Cir. 1986). The six factors are: (1)
whether state statutes and case law view the entity as an arm of
the state; (2) the source of the entity's funding; (3) the
entity's degree of local autonomy; (4) whether the entity is
concerned primarily with local, as opposed to statewide,
problems; (5) whether the entity has the authority to sue and be
sued in its own name; and (6) whether the entity has the right to
hold and use property. See Clark, 798 F.2d at 744-45. No one
factor is dispositive, though we have deemed the source of an
entity's funding a particularly important factor because a
principal goal of the Eleventh Amendment is to protect state
2 Perez argues in his brief that he was not afforded any opportunity to provide evidence that Region 20 is not an arm of the state because "the claim was raised for the first time in [Region 20's] reply." Region 20 asserted its sovereign immunity defense in its First Amended Answer, directly in response to the ADA claim in Perez's First Amended Original Petition. Perez has had sufficient notice of this defense. No. 01-50591 -12-
treasuries. See Hudson v. City of New Orleans, 174 F.3d 677, 682
(5th Cir. 1999). An entity need not show that all of the factors
are satisfied; the factors simply provide guidelines for courts
to balance the equities and determine if the suit is really one
against the state itself. See id.
The district court concluded that Region 20 is an arm of the
state entitled to Eleventh Amendment immunity. The district
court noted that the Texas Attorney General considers the Centers
state agencies, that the Centers receive significant funding from
the state, that the Commissioner of Education determines the
number of Centers and their boundaries, and that the Commissioner
directs the Centers in implementing legislative initiatives
assigned to the Commissioner of Education.
Region 20 and the amicus curie State of Texas provide
sufficient evidence that Region 20 is, in effect, an arm of the
state. The Education Service Centers are at the intermediate
level of Texas's three-tiered educational system, between the
state education agency and the local school districts. San
Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 282 (Tex.
1996) ("At the state level, we have the Texas Education Agency,
headed by the Commissioner of Education and the State Board of
Education. Regionally, the Legislature created Regional
Education Service Centers. At the local level are independent
school districts.") (citations omitted). The mission of the
Centers is to "ensure that all Texas children have access to a
quality education" because "a general diffusion of knowledge is
essential for the welfare of this state and for the preservation No. 01-50591 -13-
of the liberties and rights of citizens." TEX. EDUC. CODE ANN.
§ 4.001(a) (Vernon 1996 & Supp. 2002). The Centers provide
several core services, such as teacher training and assistance to
underperforming school districts, to improve educational
efficiency and performance. See id. § 8.051. The Centers also
administer statewide programs, such as technology initiatives,
see id. § 32.001(a)(4), and programs for students with
disabilities, see id. § 29.001(4).
(1) State Statutes and Case Law
First, we consider whether state statutes and case law view
the Centers as arms of the state. The Texas Education Code
("Code") reveals that the Centers are more closely aligned with
state, rather than with local, government. Chapter 7 of the Code
establishes and defines the roles of the Texas Education Agency
("TEA"), see TEX. EDUC. CODE ANN. § 7.021 (Vernon 1996 & Supp.
2002), Commissioner of Education ("Commissioner"), see id.
§ 7.055, and State Board of Education, see id. § 7.102.3 Chapter
8 then explains that the Commissioner is responsible for
establishing Centers for statewide access to educational
resources and programs. See id. § 8.001. The Commissioner
supervises the Centers and has broad authority to "decide any
matter concerning the operation or administration of the regional
education service centers." Id. § 8.001(c). A key purpose of
the Centers is to "implement initiatives assigned by the
legislature or the commissioner [of education]." Id. § 8.002(3).
3 The Commissioner is appointed by the governor, see TEX. EDUC. CODE ANN. § 7.051 (Vernon 1996 & Supp. 2002), and is the executive officer of the TEA, see id. § 7.055(a)(2). No. 01-50591 -14-
The Code distinguishes the Centers from local school districts,
which are governed by Chapter 11 of the Code and are not under
the guidance of the Commissioner and the TEA. See, e.g., id.
§ 11.151(b) (explaining that school district trustees have the
"exclusive power and duty" to govern public schools). The
Centers, then, are administrative subdivisions within the TEA
according to state statutes.
Texas case law also suggests that the Centers are arms of
the state. In Davis v. Education Service Center, the Texarkana
Court of Appeals considered whether a Center should be considered
an arm of the state for purposes of state sovereign immunity.
See 62 S.W.3d 890, 895-96 (Tex. App.--Texarkana 2001, no pet.).
After a brief discussion, the court concluded: "When Davis sued
Region VIII and Ferguson, in his official capacity, she sued the
State of Texas." Id. at 895. While the analysis in Davis is not
controlling on the issue of Eleventh Amendment immunity, it
reflects the state's view that suing a Center is equivalent to
suing the state of Texas itself.
State statutes and case law, then, indicate that the State
of Texas views the Education Service Centers as arms of the
state.4 Perez has not provided adequate summary judgment
4 While opinions of the state Attorney General are also relevant evidence of how a state views an entity, see, e.g., Clark, 798 F.2d at 744, Texas Attorney General opinions add little to our Eleventh Amendment inquiry. The Texas Attorneys General have offered few opinions concerning the Centers, and their characterizations of the Centers have varied. In one opinion, the Attorney General referred to Centers as "state agenc[ies]," Op. Tex. Att'y Gen. No. MW-61, at 3 (1979), but in another, the Attorney General stated that Center employees are "hired by and accountable to the local board of directors," not the state board, Op. Tex. Att'y Gen. No. JM-203, at 12 (1984). No. 01-50591 -15-
evidence to rebut these authorities.5
(2) Source of Funding
Second, we address the extent to which the Centers receive
funding from the State of Texas. This inquiry considers both the
state's liability for a judgment rendered against the Centers and
the state's liability for general debts and obligations. See
Hudson, 174 F.3d at 687. While the Code does not contain a
specific provision requiring the state to indemnify the Centers
in the case of a judgment, the significant financial support the
state affords to the Centers suggests that a judgment against a
Center would be borne in large part by the state.
We examine the amount of funding the state provides to an
entity and whether that funding is earmarked for any particular
purposes to determine whether a judgment likely would be paid
with state funds. See Hudson, 174 F.3d at 688-89. The State of
Texas provides several types of funding to the Centers.
Initially, Centers receive state funding to provide core services
to school districts and campuses to improve student and school
Neither of the opinions contained any other discussion of the role of the Centers. 5 Perez suggests that Region 20 is not a state agency due to a statement made by the Commissioner of Education. After his discharge, Perez filed an administrative complaint with the Commissioner. In his complaint, Perez argued that the employment policies of the TEA applied to the Centers and that Region 20 violated the TEA policy against discrimination. The Commissioner found that the TEA policies did not apply to the Centers because the Centers were not "agents of TEA." The statement of the Commissioner was made in response to a specific question regarding interpretation of the Texas Education Code. The Commissioner did not address whether Eleventh Amendment immunity applies to the Centers. We find this evidence unhelpful in determining whether the Centers are properly considered alter egos of the state. No. 01-50591 -16-
district performance and for basic operational expenses. See
TEX. EDUC. CODE ANN. §§ 8.051, 8.121 (Vernon 1996 & Supp. 2002).
For 2000-2001, the state appropriated $58.8 million per year to
the Centers for "core services, technical assistance, and program
support." Tex. H.B. 1, 76th Leg., R.S. (1999). For 2002-2003,
the state allocated $61 million per year to the Centers. Tex.
S.B. 1, 77th Leg., R.S. (2001). Further, the Centers may receive
additional funding from the state, including funds for efficiency
initiatives, see TEX. EDUC. CODE ANN. § 8.122 (Vernon 1996 & Supp.
2002), funding for specific state initiatives, see id. § 8.123,
competitive grants for innovation, see id. § 8.124(a)(1), and
emergency grants, see id. § 8.124(a)(2). The state Commissioner
of Education has broad authority to distribute state funds and
allocate federal funds to the Centers. See id. §§ 8.001(c)(3),
8.121(a), 8.122(c), 8.123(b)(2), 8.124(b)(2). The Centers also
receive local funding through payment by school districts for
certain services and grant contracts with public and private
entities. See id. §§ 8.053, 8.125. This local funding, however,
fluctuates based on the Centers' ability to generate revenues;
state funding is the only assured source of funding for the
Centers. Though the state is not the sole source of funding for
the Centers, we are persuaded that state funding comprises the
"lion's share" of the Centers' budgets. See Vogt, 294 F.3d at
693; see also Clark, 798 F.2d at 744 (finding that a county
probation department was an arm of the state even though it
generated revenue through probation fees).
Notably, unlike local school districts, the Centers do not No. 01-50591 -17-
possess any tax levying or bonding authority that could be used
to raise funds. See TEX. EDUC. CODE ANN. § 11.152 (Vernon 1996 &
Supp. 2002). This fact counsels in favor of granting Region 20
immunity. See Anderson v. Red River Waterway Comm'n, 231 F.3d
211, 214 (5th Cir. 2000) (finding no sovereign immunity because
waterway commission could raise funds through its statutory
taxing and bonding authority); Hander v. San Jacinto Junior
Coll., 519 F.2d 273, 279 (5th Cir. 1975) (finding no immunity
because state junior college could issue revenue bonds and levy
annual ad valorem taxes). In light of the Centers' dependence on
the State of Texas for funding and their inability to raise their
own revenues, it seems likely that a judgment rendered against
the Centers would be paid in large portion by the state. Indeed,
the state provides the base funding for the Centers' operational
expenses. See TEX. EDUC. CODE ANN. § 8.121(c) (Vernon 1996 & Supp.
2002) ("Each regional education service center shall use money
distributed to it under this section for the provision of core
services . . . or for payment of necessary administrative and
operational expenses of the center related to the provision of
those services.").6
(3) Local Autonomy
Third, we ask whether the Centers exercise local autonomy or
6 Perez notes that the Centers are like school districts because Centers are subject to or exempt from taxation in the same way school districts are, see TEX. EDUC. CODE ANN. § 8.005 (Vernon 1996 & Supp. 2002), and because employees of Centers are immune from liability in the same way employees of school districts are, see id. § 8.006. Neither of these factors, though, addresses whether a judgment against a Center would ultimately be paid by the state. No. 01-50591 -18-
whether they are primarily controlled by the state. Frequent and
broad oversight by the state suggests that the entity is an arm
of the state. See Hudson, 174 F.3d at 689-90. In the case of
the Centers, members of the Board of Directors of each Center are
selected locally. See TEX. EDUC. CODE ANN. § 8.003(b) (Vernon 1996
& Supp. 2002). The Board of Directors governs each Center,
develops management and operation policies, approves programs and
activities, and establishes the budget. See id. § 8.003(e).
Though the Directors are selected locally, their election is
largely controlled by the state Commissioner of Education, as the
Commissioner sets rules for selection, appointment, and
continuity of board membership. See id. § 8.003(b). Once a
Center's Board is elected, the Commissioner has the power to
appoint a master or replace the Board of Directors if the Center
is not performing well. See id. §§ 8.104(4), 8.104(5).
Management of the Centers can be distinguished from management of
local school districts, as local school districts determine their
own procedures for electing their Boards of Trustees and Trustees
have exclusive power over the school districts. See id. §§
11.011, 11.051, 11.052.
More generally, the Centers are subject to significant
supervision by the state Commissioner of Education. The
Commissioner has broad authority to "decide any matter concerning
the operation or administration" of the Centers. See TEX. EDUC.
CODE ANN. § 8.001(c) (Vernon 1996 & Supp. 2002). The Commissioner
sets operation and performance standards for each Center, see id.
§ 8.101, and Centers are required by law to report their No. 01-50591 -19-
performance to the Commissioner annually, see id. §§ 8.103,
39.054(3)(B). Underperforming Centers may be sanctioned or even
closed by the Commissioner. See id. § 8.014. Further, the
Commissioner must approve the appointment of each Center's
Executive Director and can remove an Executive Director if a
Center is underperforming. See id. §§ 8.004, 8.104(5).
The state oversight and control of the Centers contrasts
markedly with the significant autonomy of local school districts.
"Under Texas law, independent school districts enjoy a large
amount of political autonomy from the State, the TEA, and the
[State] Board [of Education]." McKinney, 936 S.W.2d at 282.
Each school district is governed by a Board of Trustees elected
by the voters of the district. See TEX. EDUC. CODE ANN. §§ 11.051-
.053 (Vernon 1996 & Supp. 2002). Trustees have "the exclusive
power and duty to govern . . . public schools of the district."
Id. § 11.151(b). "Importantly, neither the TEA nor the Board may
substitute its judgment for the lawful exercise by district
trustees of their powers and duties." McKinney, 936 S.W.2d at
282-83. The Centers' relative lack of autonomy counsels in favor
of Eleventh Amendment protection.
(4) Local or Statewide Issues
Fourth, we consider whether the Centers focus primarily on
local or statewide issues. This factor asks "whether the entity
acts for the benefit and welfare of the state as a whole or for
the special advantage of local inhabitants." Pendergrass v.
Greater New Orleans Expressway Comm'n, 144 F.3d 342, 347 (5th
Cir. 1998). A primary mission of the Centers is to ensure No. 01-50591 -20-
statewide uniformity and quality in education. See TEX. EDUC. CODE
ANN. § 4.001(a) (Vernon 1996 & Supp. 2002). The Texas
Legislature gave the Commissioner power to establish up to twenty
Centers and delineate their boundaries to serve schools around
the state. See id. § 8.001. The Centers are accountable to the
state Commissioner of Education, see, e.g., id. §§ 8.101, 8.103,
not to local voters. The Centers collect and deliver educational
resources throughout the state, not just in one area; the Centers
are simply divided into regions for convenience. See id.
§ 8.001(b). Though "[l]imited territorial boundaries suggest
that an agency is not an arm of the state," an exception applies
when a "regional entity is an administrative division of a
statewide system." Vogt, 294 F.3d at 695; see also Clark, 798
F.2d at 745 ("Dividing the responsibilities [of the state
probation system] into judicial districts is merely an
administrative tool for handling a statewide, state program.").
The Centers are just such an entity, as they serve as
administrative divisions of the unitary state educational system.
(5) Ability To Sue and Be Sued
Fifth, we consider whether the Centers can sue or be sued in
their own names. The ability for an entity to sue and be sued
apart from the state suggests that immunity is not appropriate.
See Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 322 (5th
Cir.), cert. denied, 122 S. Ct. 618 (2001). The Code does not
grant the Centers any statutory authority to sue, but it also
does not prevent a Center from being sued in its own name. In
contrast, the Code expressly provides that school districts may No. 01-50591 -21-
sue and be sued. See TEX. EDUC. CODE ANN. § 11.151(a) (Vernon 1996
& Supp. 2002). This factor, then, slightly favors immunity for
the Centers.
(6) Ability To Hold and Use Property
Finally, we consider whether the Centers may hold and use
property. According to Texas law, the Centers may hold property,
but this right is subject to approval by the Commissioner. The
Centers are authorized by statute to purchase, lease, and acquire
property. See TEX. EDUC. CODE ANN. § 8.055(a) (Vernon 1996 & Supp.
2002). Any transaction involving real property, however, must be
approved by the Commissioner. See id. § 8.055(b). Further, the
legislature has prohibited the Centers from purchasing land or
acquiring buildings without prior authorization by the
Commissioner. See Tex. S.B. 1, 77th Leg., R.S. (2001) (Rider 4);
Tex. H.B. 1, 76th Leg., R.S. (1999) (Rider 4). In contrast,
local school districts are expressly authorized to "acquire and
hold real and personal property." TEX. EDUC. CODE. ANN. §
11.151(a) (Vernon 1996 & Supp. 2002). This factor, then, weighs
slightly in favor of immunity.
Each of the six factors counsels in favor of immunity, some
more strongly than others. Combined, these factors make it clear
that Region 20, as one of Texas's Education Service Centers, is
properly considered an arm of the State of Texas and thus enjoys
Eleventh Amendment immunity from suit in federal court.
Perez contends that even if Region 20 is an arm of the
state, it waived its sovereign immunity by removing this case to
federal district court. In support of this proposition, he cites No. 01-50591 -22-
Lapides v. Board of Regents, where the Supreme Court recently
held that a state entity removing a case to federal district
court waives its sovereign immunity with respect to state law
claims. See 122 S. Ct. 1640, 1643-46 (2002). Subsequent to the
point at which we asked for supplemental briefing to assess the
impact of Lapides, our court decided Martinez v. Texas Department
of Criminal Justice. See No. 00-51135, 2002 WL 1721803 (5th Cir.
July 25, 2002).
Martinez considered whether a plaintiff's argument of
removal-by-waiver based on Lapides should be considered for the
first time on appeal. See 2002 WL 1721803, at *6-7. Martinez
alleged violations of the First Amendment and the Texas
Whistleblower Act. See id. at *5. The district court denied
Eleventh Amendment immunity to the defendants, and the defendants
appealed. See id. Martinez argued for the first time on appeal
that the defendants' removal to federal court waived their
Eleventh Amendment immunity, citing Lapides. See id. at *6. We
noted "our long established course of refusing, absent
extraordinary circumstances, to entertain legal issues raised for
the first time on appeal" and found that no extraordinary
circumstances existed because the law "was not so settled prior
to Lapides that raising [the] waiver-by-removal claim in district
court would have been pointless or futile." Id. at *7. We thus
declined to consider the plaintiff's waiver-by-removal argument
for the first time on appeal. See id.
The present case is factually on all fours with Martinez.
In this case, Perez raised the removal-by-waiver argument for the No. 01-50591 -23-
first time on appeal. As in Martinez, the relevant inquiry is
whether extraordinary circumstances exist to justify Perez's
failure to raise the waiver argument in the district court. We
find no extraordinary circumstances in this case justifying
Perez's failure to raise the argument and thus we do not consider
whether Lapides means Region 20 waived its sovereign immunity.
See Martinez, 2002 WL 1721803, at *7. Put another way, Perez's
claim that Region 20 waived its sovereign immunity has itself
been waived.
Perez also argues that Texas law waives Region 20's
sovereign immunity. Perez cites a provision of the Texas Labor
Code which waives sovereign immunity for claims brought under the
Texas Commission on Human Rights Act. See TEX. LAB. CODE ANN. §§
21.002(8)(D), 21.002(14)(A) (Vernon 1996 & Supp. 2002). Perez
contends that since a purpose of the Texas Labor Code is to
"provide for the execution of the policies embodied in Title I of
the Americans with Disabilities Act of 1990 and its subsequent
amendments," id. § 21.001(3), the Texas Labor Code's waiver of
sovereign immunity for Texas Labor Code claims in state court
waives sovereign immunity on federal ADA claims in federal court.
It has long been settled that a state's waiver of its
Eleventh Amendment immunity must be unequivocally expressed.
See, e.g., Edelman v. Jordan, 415 U.S. 651, 673 (1974); Magnolia
Venture Capital Corp. v. Prudential Sec., Inc., 151 F.3d 439,
443-44 (5th Cir. 1998). A state's waiver of sovereign immunity
in state court does not mean the state has waived Eleventh
Amendment immunity in federal court. See Martinez, 2002 WL No. 01-50591 -24-
1721803, at *7 (citing cases). The section of the Texas Labor
Code Perez cites does waive sovereign immunity for claims brought
under the Labor Code in state court. See Sauls v. Montgomery
County, 18 S.W.3d 310, 313-15 (Tex. App.--Beaumont 2000, no
pet.). The Texas Labor Code, however, does not contain a clear
and unequivocal waiver of immunity from suit with respect to the
ADA, a distinct federal statute. Further, the cited section does
not expressly waive sovereign immunity in federal court. Thus,
Perez's contention that the Texas Labor Code waives Region 20's
immunity in this case is meritless.
The district court properly concluded that Eleventh
Amendment immunity bars Perez's ADA claim. Thus, we need not
reach the merits of this claim.7
D. Texas Whistleblower Act Claim
Perez's final claim is that Region 20 retaliated against him
for reporting another employee's sexual harassment in violation
of the Texas Whistleblower Act. The Texas Whistleblower Act
prevents a government employer from taking an adverse employment
action against an employee who, in good faith, reports his
employer's violation of law to an appropriate law enforcement
7 Perez contends that even if sovereign immunity applies to Region 20, it bars only his claim for money damages under the ADA, not his claim for injunctive relief. This argument misunderstands the nature of suits against states permitted in federal court under the Eleventh Amendment. Suits against state officials for prospective injunctive relief may be permitted in federal court. See Garrett, 531 U.S. at 374 n.9; Ex Parte Young, 209 U.S. 123, 155- 56 (1908); see also Edelman, 415 U.S. at 664-65 (distinguishing between prospective and retroactive injunctive relief). Perez, however, has sued only Region 20 itself and not any of its officers. Thus, Perez's argument that sovereign immunity does not bar injunctive relief in his case fails. No. 01-50591 -25-
agency. TEX. GOV'T CODE ANN. § 554.002 (Vernon 1994 & Supp. 2002).
The district court found that Perez's Whistleblower Act
claim failed on the merits. We need not address the merits of
the Texas Whistleblower Act claim because this claim is barred by
Eleventh Amendment immunity as well.8 The Texas Whistleblower
Act waives sovereign immunity in state court. See TEX. GOV'T CODE
ANN. § 554.0035 (Vernon 1994 & Supp. 2002) ("Sovereign immunity
is waived and abolished to the extent of liability for the relief
allowed under this chapter for a violation of this chapter.").
We recently held, however, that the Texas Whistleblower Act's
waiver of sovereign immunity in Texas state court does not amount
to a waiver of its sovereign immunity in federal court. See
Martinez, 2002 WL 1721803, at *7-8. We noted that "[e]ven when a
State consents to suit in its own courts, . . . it may retain
Eleventh Amendment immunity from suit in federal court." Id. at
*7. We then examined the text of the waiver provision in the
Whistleblower Act and concluded that the Act does not "evidence[]
any intent by Texas to waive its Eleventh Amendment immunity and
subject itself to suit in federal courts." Id. Since we hold
that Region 20 is an arm of the State of Texas, sovereign
immunity bars Perez's claim under the Whistleblower Act. We
affirm summary judgment on this claim, though on different
grounds that those cited by the district court.
IV. CONCLUSION
8 Although Region 20 did not argue that sovereign immunity bars the Texas Whistleblower Act claim, we may consider this issue sua sponte because it bears on this court's subject- matter jurisdiction. See Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th Cir. 1999). No. 01-50591 -26-
The judgment of the district court is AFFIRMED. All
outstanding motions are DENIED as moot.